In what was otherwise a sweeping victory for Apple, the jury agreed with Samsung that the Galaxy Tab 10.1 does not infringe Apple's iPad-related design patent, shortly referred to as the D'889 patent. Samsung argues that Apple can no longer show a likelihood of success on the merits with respect to this infringement allegation, and the preliminary injunction now lacks a legal basis.

Given that jury verdicts are treated with some deference, it's generally true that a claim on which a jury rendered a negative verdict is not sufficiently likely to succeed that a preliminary injunction is justified. In this particular case, I'm sure that Apple will bring a Rule 50 motion asking the court to overrule the jury with respect to the infringement of the D'889 patent. Judge Koh had previously deemed this patent likely to be infringed by the Galaxy Tab 10.1 in her original (December 2011) decision denying a preliminary injunction (with respect to the Galaxy Tab 10.1, the denial was based on doubts about the validity of the patent, a holding that the Federal Circuit reversed, paving the way for entry of a preliminary injunction). A finding that there is a likely infringement is not the same as a decision that a jury found something that no reasonable jury could have found. The hurdle is higher for the latter. But the fact that the lower hurdle, which is still a significant one, was overcome last time shows that a Rule 50 motion on this item won't be a long shot.

When Judge Koh finally granted, ater Apple's partly-successful appeal, a preliminary injunction, she also relied in part on the minority opinion expressed by Circuit Judge O'Malley, who disagreed with her Federal Circuit colleagues' decision to remand the matter for a new equitable analysis. In Judge O'Malley's opinion, it was clear that all of the requirements for a preliminary injunction were met, and further proceedings seemed a waste of time to her. While this is only a dissenting opinion, the fact that Judge Koh concurred with it last time also helps Apple.

The issue here is primarily timing. If Samsung didn't make this such an urgent matter, Judge Koh would simply await and adjudicate the parties' Rule 50 motions. If Apple won on the D'889 infringement question, the preliminary injunction would remain in place, and otherwise it would be lifted. But Samsung argues that it is suffering irreparable harm with every day that the ban is in place and wants an immediate decision. If the court agreed with Samsung's proposed schedule, Apple would have to bring its D'889-related Rule 50 motion by tomorrow (or it would at least have to make the same kind of argument as in the Rule 50 motion in its opposition to Samsung's motion for dissolution of the injunction). After celebrating most of the other parts of the jury verdict, Apple's lawyers may already have done a lot of work on this item, but if not, they certainly saw late on Sunday that this is now an urgent issue. Samsung has a lot more Rule 50 work to do.

I'm sure that Judge Koh will want to avoid too much of an on-again-off-again situation concerning this injunction. She denied in December; then granted in June after an appeal; she denied a stay, as did the appeals court; and if the injunction is lifted now, she'll want to be sure that Apple's Rule 50 motion won't succeed because otherwise there would certainly be an immediate request for a new injunction.

At this point I don't think it really matters too much to Apple whether or not the Galaxy Tab 10.1 remains on sale. There's little demand for it, and Samsung has newer products on the market that are more relevant. But Apple has to fight for this for two reasons:

The dissolution of this preliminary injunction might encourage Samsung to launch new tablet computers in the U.S. that will again look quite iPad-like.

If Samsung was ultimately (after all appeals) cleared of infringement of the D'889 patent, Samsung would be entitled to recover damages (resulting from enforcement of an improperly-granted preliminary injunction), and while those damages wouldn't be huge by Apple's standards (just a small part of the billion-dollar amount the jury awarded), it wouldn't look too good if Apple had to pay for damages based on overly aggressive enforcement. Should the preliminary injunction be lifted at this point, there still wouldn't be a basis for a damages claim by Samsung (the final outcome of this case, after all appeals, is the one that matters), but the likelihood of Samsung ultimately obtaining damages would increase.

This is the first post-verdict issue to have been raised in the form of a full-blown motion. There will be many more to come.

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About Me

Florian Mueller is a former award-winning intellectual property activist with 25 years of software industry expertise spanning across different market segments (games, education, productivity and infrastructure software), diverse business models and a variety of technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof.) He is now developing a game app for smartphones and tablet computers.